22. Memorandum from Committee
on the Administration of Justice (Northern Ireland)

INTRODUCTION

The Committee on the Administration of Justice
(CAJ) was established in 1981 and is an independent non-governmental
organisation affiliated to the International Federation of Human
Rights. CAJ monitors the human rights situation in Northern Ireland
and works to ensure the highest standards in the administration
of justice. CAJ takes no position on the constitutional status
of Northern Ireland, seeking instead to ensure that whoever has
responsibility for the jurisdiction respects and protects the
rights of all without distinction. CAJ is opposed to the use of
violence for political ends. The organisation's membership is
drawn from all sections of the community and it has been awarded
a number of international awards, including the prestigious Council
of Europe Human Rights Prize in 1998.

CAJ believes that human rights abuses have fed
and fuelled the conflict, and accordingly worked hard to ensure
that adequate institutional and other human rights protections
would be built into the Good Friday/Belfast Agreement. We warmly
welcomed the centrality given to human rights in the final text
and CAJ worked intensively, in the immediate aftermath of the
referendum vote, to ensure that the human rights and equality
provisions secured in the Agreement would be fully translated
into legislative form. Almost weekly meetings were held with Minister
Paul Murphy in the final stages of the lobbying around the legislation,
and we believe that the Northern Ireland Act reflects good practice
in a number of important domains.

The establishment of a Northern Ireland Human
Rights Commission (NIHRC) was something that CAJ campaigned for
successfully. However, we were less successful in convincing the
government of the day that any such Commission should meet the
minimum standards established by the UN Principles governing human
rights institutions (the so-called Paris Principles). We remain
surprised to this day why the United Kingdom, as a founding member
of the United Nations, and a permanent member of the Security
Council, would hesitate to comply with standards agreed as basic
common standards for all such Commissions. With two years of experience
completed, the Commission has now undertaken a review of its powers,
and we were deeply disappointed to discover that our theoretical
fears have been proved all too correct in practice. The Northern
Ireland Human Rights Commission has neither the resources nor
the powers to operate to its fulland necessarypotential.
We hope that the occasion will be taken by the Joint Committee
on Human Rights to address this situation directly, as well as
draw lessons from the Northern Ireland situation which may have
relevance for other jurisdictions in the UK.

GENERAL COMMENTARY

CAJ welcomes the recognition of the Joint Parliamentary
Committee that the establishment of the NIHRC, as a part of the
Good Friday Agreement, means that its remit cannot easily be fundamentally
altered in any UK-wide debate of human rights institutions. It
is of course always open to government to improve on its human
rights mechanisms and safeguards, and we hope that the following
paper will indicate ways in which current protections (including
the work of the NIHRC) could be strengthened.

As the only human rights commission so far in
the UK, the experience of the NIHRC over the last two years will
obviously be of great relevance to the Committee's work. Moreover,
the recent review they have carried out into their powers is extraordinarily
relevant to your deliberations and should, we believe, be the
main starting point for the Committee's work. Arising from its
review, the Commission makes an extensive number of recommendations
but it highlights three particular priority issues. The NIHRC
argues that it needs to have effective powers of investigation,
it needs to be able to appear as a third party before the court,
and it needs an adequate level of resources. It argues that nothing
short of this will allow it to carry out its duties effectively,
and live up to the expectations placed in it. CAJ endorses this
conclusion and notes that all the recommendations are covered
by the Paris Principles.

Though the Human Rights Commission established
in the Republic of Ireland is of much more recent date, it also
provides an interesting model that the Joint Committee may want
to examine. The Good Friday Agreement established that there should
be at least an equivalent level of human rights protection in
the Republic of Ireland as in Northern Ireland, and it is notable
that the Republic's Commission has greater powers than its Northern
Ireland counterpart.

Based on the experience to date in Northern
Ireland, CAJ would therefore urge the Joint Parliamentary Committee
to recognise that:

(a) As a member of the UN Security Council,
and one that prides itself on its attachment to human rights and
democratic governance, it should be inconceivable that the UK
would do anything other than take as its starting point the minimum
standards laid down in the UN Paris Principles when establishing
human rights institutions. Instead of failing to live up to these
principles (as it did when legislating for the NIHRC), the government
must use this opportunity to go beyond what are minimum internationally
agreed principles.

(b) The NIHRC, if (and only if) it were
granted the powers requested by it in its recent review of powers,
could provide an important building block for human rights protections
in other jurisdictions. Interestingly, the Republic of Ireland
is obliged under the GFA to provide at least as good human rights
protection as in Northern Ireland, and has in fact established
a Commission with greater powers than its northern counterpart.
Although its practical experience is of much shorter duration
than that of the NIHRC, the Joint Committee may want also to scrutinise
this model closely prior to coming to final conclusions.

(c) Ideally, strong human rights "control"
mechanisms should be located as close as possible to the problems
needing to be addressed. CAJ believes that individual human rights
violations can therefore best be addressed at the devolved level,
rather than at a state-wide level. The logic of such a stance
is that there be commissions to cover each of the separate jurisdictions.

(d) On the other hand, just as the strength
of the regional or devolved commissions lies in their more localised
expertise and responsiveness, their weaknesses lies in their inability
to develop UK-wide positions where these are necessary. UK-wide
positions are particularly necessary in relation to human rights
standard-setting and reporting obligations at the international
level.

(e) CAJ would therefore recommend:

 the creation of a distinct Human
Rights Commission for each UK jurisdiction;[60]

 the creation of a co-ordinating structure
at UK wide level which would bring together representatives from
each of the different commissions to meet once or twice a year
to exchange information and good practice and to take action on
any issues of common interest.

Question 1

What (if anything) do you think a Human Rights
Commission might add to the current methods of protecting human
rights in the United Kingdom? In particular, are there useful
functions in connection with protecting human rights and developing
a culture of human rights which do not fall within the remit of
any existing agency in the United Kingdom, such as:

(a) fostering a human rights culture in
the United Kingdom;

(b) education in human rights;

(c) advising and assisting people who
claim to be victims of violations of their Convention rights;

(d) developing expertise in human rights;

(e) bringing legal proceedings on human
rights issues?

The experience of the Human Rights Commission
in Northern Ireland is that it raises the profile of human rights
generally and can, given the necessary powers, provide an important
mechanism to redress grievances. The examples of activities to
be undertaken by Commissions are very relevant. CAJ believes that
long-lasting cultural change, and educational initiatives, need
to be carried out as near as possible to the targeted audiences.
The practical work referred to in items (a), (b) and (d) would
therefore rest essentially with the local commissions, but there
would be great value in exchanging good practice across the different
jurisdictions.

It is difficult for us to see why one would
pursue individual human rights violations, or legal proceedings,
at a UK-wide level rather than at a more local level. Accordingly,
we believe that items (c) and (e) should clearly rest with the
local Commissions. Even where the issue per se is not devolved,
there is no reason why it could not be left open to the individual
Commission to take a case. After all, the NIHRC can take cases
under the Terrorism Act, even if that particular legislation was
passed by Westminster not Stormont and despite the fact that security
issues are still clearly not devolved.

Question 2

If a Human Rights Commission were established
how should its role and functions relate to those of this Committee?

We think that, in their human rights work, the
roles of non-governmental organisations, media, statutory bodies,
parliamentary bodies and governments are complementary but very
distinct. The particular strength of human rights commissions
lies in the fact that they are outside of the executive and legislature,
and have no (or should have no) partisan political agendas. Parliamentary
committees create a more "internal" scrutiny mechanism
within the legislature (and to some extent the executive). The
very fact that such committees draw their members from across
the political spectrum is an extremely positive, if quite different,
contribution to the protection of human rights.

Question 3

In what order of priority would you arrange
the functions of such a Commission? If you think that a Commission
should examine a range of issues, to which issue or issues do
you think that the Commission should give priority?

In general terms, CAJ's view would be that litigation
is a key function for any Human Rights Commission, followed closely
by investigative research and wider human rights education. However,
the work and the priorities of the different Commissions will
depend very much on the needs in the different jurisdictions.
Thus, a Bill of Rights is a key piece of work for the NIHRC but
may be seen as much less of a priority in other jurisdictions.
At the UK wide level, priorities about issues for wider collaboration
would need to be on the basis of consensus between different jurisdictions.

Question 4

If a Human Rights Commission were to be established
should there be a single body with a jurisdiction extending to
all parts of the United Kingdom, or separate bodies for England,
Scotland and Wales and Northern Ireland, or both a United Kingdom
body and bodies with territorial responsibilities?

Question 5

If there were to be a Human Rights Commission
with responsibilities for the whole United Kingdom (whether or
not it operated alongside other bodies with responsibility for
just one part of the United Kingdom), what relationship should
there be between its work in respect of Northern Ireland and the
work of the Northern Ireland Human Rights Commission (and similar
Commissions in Scotland and Wales if they are established at some
time in the future)?

See earlier comments. CAJ believes that there
should be a single Commission for each jurisdiction and regular
meetings of representatives from each of the commissions to discuss
UK-wide issues. The co-ordination meetings should normally not
have any power to intervene directly on human rights issues as
they relate solely to England, or Wales, or Scotland or Northern
Ireland (unless explicitly requested to do so by the relevant
commission). However, in combination, all the individual jurisdictions
would benefit from sharing good practice at regular intervals,
and in evolving common positions whenever a common UK position
is required. Over time, one might imagine that the individual
Commissions could see a value in developing a stronger UK-umbrella
structure, but this should be a generic "bottom up"
development.

Question 6

If a Human Rights Commission were established,
how should its work relate to that of other bodies with special
responsibility for particular rights, such as the Information
Commissioner, the Equal Opportunities Commission, the Commission
for Racial Equality, the Disability Rights Commission, and the
Equality Commission for Northern Ireland? In particular:

(a) Should a Human Rights Commission perform
functions now performed by existing specialist Commissions, or
should it co-exist with them? If they were to co-exist, what roles
should they perform in areas where their responsibilities might
be expected to overlap?

(b) If a Human Rights Commission were
to co-exist with the existing equality Commissions, should issues
relating to equal opportunities be excluded from the remit of
the Human Rights Commission and be given to the Equality Commissions?

In Northern Ireland, we have a Human Rights
Commission and an Equality Commission. Protocols have been developed,
or are in preparation, to ensure that information is exchanged,
and the setting of priorities is informed by each other's work.
We see no reason why this would not be possible in the other jurisdictions,
and indeed it has come to our attention that there are already
some regular exchanges between the human rights and various equality
agencies, in both Britain and in Ireland. Certainly, at the UK
level, a strong case could be made for including in the regular
meetings of Commission members, single-issue UK-wide bodies such
as the Information Commissioner, alongside jurisdictional Commissioners.

Question 7

If a Human Rights Commission were to be established,
how should its independence of Government be preserved while ensuring
an appropriate type and level of accountability? In particular:

(a) how should
its Chair, members and key staff be appointed?

(b) how should
its funding be provided?

(c) to whom
should it be accountable (eg to a parliamentary body)?

(d) how should
the matters mentioned in (a), (b) and (c) take account of devolution
to Northern Ireland, Scotland and Wales?

We would recommend that the Committee examine
both the current practice with regard to the NIHRC, and the various
recommendations it has made to strengthen its independence. In
general terms, we think that there should be an independent selection
committee for members of the Commission, that the posts be publicly
advertised, and that the Chief Commissioner be given a role in
determining other appointments to the Commission. As to funding,
it will be very clear to the Joint Committee that the NIHRC has
serious problems in this area. The problem is not solely insufficient
resources, but the fact that the existing arrangements for financial
scrutiny are overly interventionist and entirely unsatisfactory.
It is quite inappropriate for an independent commission to have
such detailed control exercised over its budget, and alternative
arrangements must be introduced. One could imagine a variety of
responsesperhaps an endowment arrangement? Or perhaps a
budgetary allocation system which makes a clear distinction between
the exercise of financial and of democratic scrutiny?

Question 8

In the light of your answers to Questions
1 to 7, what is your estimate of the level of staffing which would
be required by the body or bodies you propose and what the annual
cost might be?

CAJ would assume that few if any staff at the
UK wide level are required immediately, thoughas noted
earlierthe level of UK (as distinct from activities by
the individual Commissions) may vary over time. Staffing levels
for the devolved Commissions will need to be determined in the
light of local realities.

Question 9

Some Commissions currently operating in fields
related to human rights have a range of powers. For example, they
might be empowered to conduct investigations; to require people
to provide information; to issue notices requiring people to cease
conduct which the Commission considers to be unlawful; to conduct
legal proceedings; to assist other parties to legal proceedings;
to issue Codes of Practice; to conduct research; and to engage
in a range of activities designed to heighten awareness of issues
within the remits. If a Human Rights Commission were to be established,
what powers should it have?

See the UN Paris Principles as a starting point,
and very importantly the recent report on the experiences of the
NIHRC. The Joint Parliamentary Committee will need to take particular
account of the NIHRC recommendations regarding the powers they
consider necessary to be a credible human rights commission. The
fact that the Irish Republic's Commission has more fully reflected
the Paris Principles may also provide an interesting model to
explore in more detail.

Question 10

Are there other relevant issues or considerations
which have not been covered in answers to the earlier questions?

The NIHRC works with the newly created Republic's
Human Rights Commission via a Joint Committee. There is probably
too little experience to draw upon yet, but there may be some
interesting parallels here that the NIHRC could be asked to expand
upon in its own submission to the Committee. As noted elsewhere,
the legislation establishing a Commission in the Republic is stronger
and is more in line with the Paris Principles than is the case
for Northern Ireland. We can think of no reason why the level
of protections provided by the UK should be any less.

CAJ has not painstakingly reiterated the detailed
concerns and recommendations of the NIHRC, but we cannot emphasise
enough that the review highlights very grave problems in the Commission's
ability to meet the high expectations placed in it. Attached for
your information is CAJ's commentary on the review, and a copy
of the review itself, though this latter is presumably available
on the web. In his reply to CAJ's critique the Chief Commissioner
noted "Your letter goes on to express considerable doubt
over whether the Human Rights Commission can justify public confidence
in its ability to deliver appropriate changes in human rights
protection. I have to admit that I myself, and some at least of
my fellow Commissioners, harbour such doubts too. Whether those
doubts can be dispelled depends on how government responds to
our report (and the Law Lords ruling) . . .".

CAJ strongly urges the Joint Parliamentary Committee
to prevail upon government to respond positively to the recommendations
of the NIHRC. Indeed, we would go so far as to say that if the
Joint Parliamentary Committee cannot agree to make such an intervention,
there is little point in proceeding to create further (weak) commissions
in other jurisdictions. Tokenistic responses (and how else could
one describe the establishment of a Human Rights Commission acting
as little more than a toothless tiger?) do a grave disservice
to human rights. We urge you to ensure that the NI Commission
be given the powers and resources it needs, and then use this
as a model of good practice on which to create commissions in
other jurisdictions.